This Week In Transparency: Patriot Act, 50 Year Old Secrets, and More Drones

Last week, the Wall Street Journal reported the Obama Administration may finally lift the legal veil of secrecy surrounding the CIA’s covert drone program. The ACLU has been involved in a lawsuit over the US government’s constitutional authority to target American citizens with strikes overseas with its supposedly covert CIA drone program. On Monday, however, the CIA decided to continue to claim the program is a state secret and that they should not have to admit or deny it exists.

This, despite the fact that, as Journal reported, “U.S. drone strikes are hardly a secret. Officials have spoken openly about them, even discussing the operations in formal speeches. But they are still classified, and unauthorized disclosures about details of individual missions could constitute a felony.”

Ironically, on the same day, the White House announced a new policy for which suspects get targeted by the covert program, saying counterterrorism chief John Brennan would have the final say on who gets targeted by The Program Which Must Not Be Named.

EFF published the full set of documents the Justice Department has handed over so far in our FOIA lawsuit for the Justice Department’s secret interpretation of section 215 of the Patriot Act, of which Senators Ron Wyden and Tom Udall warned “most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act.”

Meanwhile, a court in New York ruled against New York Times reporter Charlie Savage, along with the ACLU, in their separate lawsuit asking for the Justice Department’s secret memo on the same matter. Both EFF and ACLU have separate suits pending related to Section 215 in different jurisdictions.

State Department documents on ACTA

The EFF also received a response from the State Department last week in response to our FOIA request for documents related to the Anti-Counterfeiting Trade Agreement (ACTA). ACTA contains harsh copyright standards that EFF has been protesting for years. The documents suggested that ACTA was not submitted to the normal State Department review process to determine its constitutionality before it was signed by the Deputy Trade Ambassador. Read more about the FOIA request and how law professors cast further doubt on ACTA’s constitutionality here.

FOIA Suit for White House Visitor Records

EFF, along with Citizens for Responsibility and Ethics in Washington (CREW) and a host of other civil society organizations, recently filed an amicus brief in the long running Freedom of Information Act case against Department of Homeland Security (DHS) and the Secret Service for access to the White House visitor logs. Previously, the Obama administration released many of the logs, but is still arguing in court that they are not subject to FOIA because they do not belong to a specific agency. However, given it’s clear Secret Service is part of DHS, there is no threat to public safety, and the White House has released many records already, that there is no reason they should be withheld from the FOIA process.

NSA Forced to Declassify Document It Accidentally Posted Online

In an embarrassing incident two weeks ago, the National Security Agency (NSA)—notorious for overclassification and secrecy—was forced to use a “rarely used authority” to declassify a “properly classified” document in full after they mistakenly posted it on their website, according to secrecy expert Steven Aftergood. Instead of redacting the alleged sensitive material in the online post, they highlighted it.

But, according to Aftergood, as is the case in many circumstances of government classification, it is hard to see why it wasn’t declassified in the first place:

There was nothing exceptional about the contents of the document, and there was no overriding public interest that would have compelled its disclosure if it had been properly classified. Nor is any national security damage likely to follow its release.

Final Volume of the CIA’s Bay of Pigs Study Will Remain Secret

Two weeks ago, a federal judge ruled for the government in a FOIA suit filed by the National Security Archives asking the CIA to formally declassify a draft of the last volume of a history of the Bay of Pigs Invasion. Unfortunately, the federal judge ruled the government could keep the draft version secret, despite the fact that it was written 31 years ago about an event that happened more than 50 years ago.

The judge reasoned that the final volume was a draft not intended “for inclusion in the final publication” and therefore the ‘deliberative process’ exemption to FOIA applied, which provides an exemption to disclosure for documents that help government officials arrive at final agency policy positions. As McClatchy reported, “The judge agreed with the CIA assertion that release of Volume V would have a chilling effect on current CIA historians who might be reluctant to try out ‘innovative, unorthodox or unpopular interpretations in a draft manuscript’ if they thought it would be made public.”

The deliberative process privilege – when narrowly invoked – serves legitimate purposes. It is designed to provide lower level government employees with the freedom to express ideas, without fear of public disclosure if those ideas are not ultimately adopted by the agency. However, in this case, the (former) government employee who wrote the draft volume sought its release – through a FOIA request – 10 years ago. At the time, the information contained within the draft was still classified, so his request was denied. Now, however, the information is no longer classified, and, given that the person whose “deliberative process” the CIA is allegedly protecting sought the draft’s release, it is hard to understand what the public interest in protecting the document, 30 years after its creation, could possibly be.

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